Tuesday, 29 December 2015

Zuzana Vikarska, Post-graduate research student, University of Oxford*

*This post is written in the author's academic capacity and does not represent the view of any of her past, present or future employers

On Wednesday 2 December, Slovakia
filed an action for annulment to the Court of
Justice (pending
case C-643/15), challenging the legality of
the Asylum-Seekers Relocation Decision (“the
contested decision”) adopted on 22 September 2015. Just
one day later, on Thursday 3 December, Hungary did the same (pending
case C-647/15).

Steve Peers has already discussed
some of the (anticipated) legal arguments against the validity of the
challenged EU measure in his
recent blog-post. In the following post, I
briefly discuss the arguments on which the Slovak government’s case rests and I
explore whether they are likely to succeed before the Court of Justice. Unfortunately,
I do not have access to the full text of the Slovak action, nor to the
arguments of the Hungarian government. I am therefore only commenting on the summary
of the six arguments, which has been published on the
webpage of the Slovak Ministry of Justice.

1. Division of competences and
institutional balance

“First plea in law, alleging
breach of Article 68 TFEU, as well as Article 13(2) TEU and the principle of
institutional balance: The Council by adopting the contested decision exceeding
the previous guideline of the European Council, being therefore in
contradiction to the mandate of the latter, infringed Article 68 TFEU as well
as Article 13(2) TEU and the principle of institutional balance.”

In its first claim, the Slovak
government argues that the measure was adopted in contradiction to the
guidelines set by the European Council, an institution made up of heads of
state and government (as distinct from the Council, made up of national
ministers), whose role is to “define the general political directions and
priorities” of the Union (Article 15 TEU), as well as to “define the strategic guidelines for
legislative and operational planning within the area of freedom, security and
justice” (Article 68 TFEU). Let us therefore have a look at the “strategic
guidelines” determined by the European Council in its most recent meetings.

On 23 April 2015, the European
Council stated that there was a need to “consider options for organising
emergency relocation between all Member States on a voluntary basis” and to
“set up a first voluntary pilot project on resettlement across the EU,
offering places to persons qualifying for protection.” Furthermore, at its
meeting of 25 and 26 June, the European Council agreed on “the temporary and
exceptional relocation over two years from the frontline Member States Italy
and Greece to other Member States of 40.000 persons in clear need of
international protection, in which all Member States (except the UK) will
participate,” as well as “the rapid adoption by the Council of a
Decision to this effect; to that end, all Member States will agree by consensus
by the end of July on the distribution of such persons, reflecting the specific
situations of Member States.” No particular conclusions have been adopted
as to the 120.000 further asylum-seekers whose situation forms the subject
matter of the contested relocation decision.

a. European Council promising “that
no quota would be adopted”?

In his recent explanation of this
first plea, the Slovak Prime Minister said that the European Council had
allegedly “stated that no quota would be adopted” and that the Council of
Ministers had disrespected this agreement. Having read the conclusions of the
European Council summarised above, the Prime Minister’s statement seems to be
rather inaccurate. The Council has not acted contrary to the European Council’s
conclusions, which makes the first part of the first claim moot.

Hypothetically, however, if there
truly was a clear conflict between the conclusions of the European Council and
the actions of the EU lawmakers (the Commission, the Parliament, and the Council),
such situation could indeed raise some interesting questions concerning the
institutional balance in the Union. What if the European Council had expressed
a clear consensus that relocation of asylum-seekers was an undesirable, or even
unacceptable way of addressing the current crisis, and despite such consensus,
the Commission would subsequently propose a relocation measure (like the one
adopted on 22 September), which would be passed by the Council and the
Parliament?

It is necessary to realise that
the conclusions of the European Council are endowed by political, rather than
legal significance (see Article 15(1) TEU). That being said, if the Commission
acted in direct opposition to the “general political directions” (Art 15 TEU)
and “strategic guidelines” (Art 68 TFEU) adopted by the European Council, such
action could violate the principle of institutional balance, since it would deprive
the European Council’s decisions and conclusions of any effect. This shows that
although the European Council’s conclusions are not legally binding, they
should be endowed with political significance, therefore requiring the
Commission either to act in line with them, or to provide an elaborate and
politically acceptable explanation of any other action.

Still, this analysis remains hypothetical,
since the quotations above suggest that the draft of the contested decision did
not disrespect any of the political directions outlined by the European Council
in the past couple of months.

b. European Council requiring
that the vote in the Council be unanimous?

The second interesting question
concerns the European Council’s wish that the relocation decision be reached by
consensus, as expressed in the conclusions of 25 and 26 June. It is important
to point out that this wish only concerned the first 40,000 asylum-seekers, and
therefore remains irrelevant for the validity of the contested decision. That makes
the second part of the first argument moot as well. However, let us see (once
again, hypothetically) whether the European Council could, by its (political) decision,
require a different threshold for adopting a decision in the Council, in contrast
with the (legal) threshold required by the Treaties.

What happens if the procedure
envisaged by Article 78(3) TFEU requires a qualified majority vote in the
Council (which it does), while the European Council imposes a requirement of a
unanimous vote? While the Treaties remain silent about a change of procedures
from QMV to unanimity, they do include a provision governing a move in the
opposite direction: from unanimity to QMV. Pursuant to Article 48(7) TEU, “where [TFEU] or Title V of [TEU] provides for
the Council to act by unanimity in a given area or case, the European Council
may adopt a decision authorising the Council to act by a qualified majority in
that area or in that case.” A change from unanimity to QMV is therefore
possible, but it comes with significant procedural guarantees, such as
obtaining the consent of the European Parliament and giving national
parliaments 6 months to block such action. It follows that changes of Treaty
voting mechanisms require more than just a unanimous decision of the European
Council. Furthermore, while a change from unanimity to QMV is at least foreseen
by the Treaties, a change in the opposite direction is not. That leads to a
conclusion that such an instruction given by the European Council would only
have political significance, but would remain legally irrelevant.

Therefore, even if the
requirement of a unanimous vote extended to all legal measures adopted under
Article 78(3) TFEU, quod non, I hold
the opinion that such an agreement would remain a gentlemen’s agreement, rather
than a legally binding requirement. Therefore, the second part of the first
plea put forward by the Slovak government does not seem to offer a good reason
for the annulment of the contested decision, either.

2. Legislative vs. non-legislative
acts

“Second plea in law, alleging
breach of Article 10(1 and 2) TEU, Article 13(2) TEU, Article 78(3) TFEU,
Article 3 and 4 of the Protocol (No.1) and Article 6 and 7 of the Protocol
(No.2), as well as the principles of legal certainty, representative democracy
and institutional balance: Such kind of act as the contested decision cannot be
adopted on the basis of Article 78(3) TFEU. Regarding its content, the
contested decision is in fact of a legislative character and should therefore
be adopted by legislative procedure, which, however, is not foreseen in Article
78(3) TFEU. By adopting the contested decision on the basis of Article 78(3)
TFEU, the Council not only breached the latter, but it also interfered with the
rights of national parliaments and the European parliament.”

This second plea opens a very
interesting question of the nature of “legislative acts” in EU law: what does a
measure need in order to be “of a legislative character”? The Slovak
government seems to invoke a material
understanding of a legislative act, suggesting that some things are too
important to be governed by a non-legislative act. This, however, is not how EU
law seems to work. The concept of a legislative act seems to be a formal one, as follows from Article 289(3)
TFEU: “Legal acts adopted by legislative procedure shall constitute
legislative acts.”

Although EU law surely doesn’t
work with a material concept of
“legislative acts”, it remains unclear what a legislative act really is. Two formal
interpretations are still feasible: a narrow textual one and a procedural one.

According to a narrowtextual interpretation, favoured e.g. by Lenaerts, by Craig &
De Burca, as well as by Advocate-General Kokott in her opinion in C-583/11 Inuit
Tapiriit Kanatami, the (non-) legislative nature of an act depends on one
and only factor: whether its legal basis refers to a “legislative procedure” in
its wording or not. Pursuant to this interpretation, an asylum measure adopted
under Article 78(3) TFEU will be a non-legislative act, while a measure on
diplomatic protection adopted under Article 23(2) TFEU will be a legislative
act, although the procedure of their adoption is exactly the same: a proposal
from the Commission and a qualified majority vote by the Council, after
consulting the European Parliament. This interpretation seems to be supported
by Article 289(2) TFEU, which states that special legislative procedure is only
used “in the specific cases provided for by the Treaties,” which simply
isn’t the case for measures adopted under Article 78(3) TFEU. Another argument
for this narrow textual interpretation is the practical functioning of the EU
institutions: Eur-Lex categorises the contested decision as an “NLE”, which
stands for “non-legislative procedure”. On a practical level, this textual
interpretation thus seems to be a well-established one.

The third thinkable alternative
is a procedural interpretation (that
seems to be preferred e.g. by Chalmers), according to which an act is to be
labelled as “legislative” if both the Council and the Parliament are involved
in its adoption, no matter whether the specific legal basis speaks of a
“legislative procedure” or not. There are in fact a number of solid arguments
for this broader interpretation of legislative acts. Firstly, Article 289(3) TFEU
(technically) does not say anything about the nature of acts that are not
adopted by a legislative procedure. In the terminology of formal logic, Article
289(3) is an implication; therefore, turning it around (and stating that “legal
acts not adopted by legislative procedure shall constitute non-legislative acts”)
would be a logical flaw. Secondly, the endorsement of the textual
interpretation would lead to a situation where entire areas of EU law (such as
competition law!) would not contain any legislative measures whatsoever, which
is rather curious. Thirdly, the textual interpretation would have vast
consequences for the procedural standing of non-privileged applicants under
Article 263(4) TFEU who would be able to challenge a much broader category of acts
without having to establish individual concern. Fourthly, if we were to link
the legislative nature of a measure with its democratic legitimation, the
procedural interpretation would make much more sense than the textual one. Yet,
despite all these arguments (and despite the hopes of some academics, as well
as practitioners), it seems that (at least at present), the narrow textual
interpretation of “legislative acts” seems to prevail.

Be that as it may, both the narrow
textual interpretation and the procedural interpretation are formal in their
nature. It makes no sense to claim that the measure at stake is “of a
legislative character” and that Article 78(3) TFEU is therefore not a correct
legal basis for such measure, if it cannot lead to the adoption of a
legislative act. The conditions of the said article have been fulfilled both
materially (emergency situation, sudden inflow of third country nationals,
benefit to the Member States concerned) and procedurally (proposal from the
Commission, consulting the Parliament, QMV in the Council). Therefore, the
second plea of the Slovak government seems to be unfounded as well.

3. Procedural conditions in case
the contested decision is indeed a legislative act

“Third plea in law, alleging
breach of essential procedural requirements governing the legislative
procedure, established in Article 16(8) TEU, Article 15(2) TFEU, Article
78(3) TFEU, Article 4 of the Protocol (No.1) and Article 6 and 7(1 and 2)
of the Protocol (No.2), as well as Article 10(1 and 2) TEU, Article 13(2) TEU
and the principles of representative democracy, institutional balance and sound
administration: If the Court of Justice contrary to the submissions of the
Slovak Republic within the second plea in law came to the conclusion that the contested
decision was adopted by legislative procedure (quod non), the Slovak Republic
in the alternative alleges the breach of essential procedural requirements,
established in Article 16(8) TEU, Article 15(2) TFEU, Article 78(3) TFEU,
Article 3 and 4 of the Protocol (No.1) and Article 6 and 7 (1 and 2) of
the Protocol (No.2), as well as Article 10(1 and 2) TEU, Article 13(2) TEU and
the principles of representative democracy, institutional balance and sound
administration. In particular, the requirement of public discussion and voting
within the Council was not respected, the participation of national parliaments
in the process of adopting the contested decision was limited and the
requirement of consultation of the European parliament was breached.”

This is where the distinction
between a textual and a procedural reading of “legislative acts” becomes
relevant. If the Court endorses the narrow textual reading of the concept
(which is, in my opinion, more probable), then the classification of the
contested decision as a non-legislative act will be confirmed and the
procedural guarantees invoked by the Slovak government will be inapplicable. Yet,
should the Court wish to reassess the notion of “legislative acts” and change
it to a procedural one, then the contested decision will have to be seen as a
legislative act that has not fulfilled the requirements listed above, namely
public voting in the Council (Article 16(8) TEU) and participation of national
parliaments (Protocols 1 and 2), which would lead to its annulment.

4.
Repeated consultation by the European Parliament

“Fourth plea in law, alleging
breach of essential procedural requirements, established in Article 78(3) TFEU
and Article 293 TFEU, as well as Article 10(1 and 2) TEU, Article 13(2) TEU and
the principles of representative democracy, institutional balance and sound
administration: Before adopting the contested decision, the Council
substantially amended the proposal of the Commission in several ways. When
doing that, the Council breached essential procedural requirements, established
in Article 78(3) TFEU and Article 293 TFEU, as well as Article 10(1 and 2) TEU,
Article 13(2) TEU and the principles of representative democracy, institutional
balance and sound administration. It is because the European parliament was not
properly consulted and the Council did not decide on the amendments of the
Commission’s proposal unanimously.”

This fourth point has already
been addressed by Steve Peers in his recent post and I agree that this indeed
seems to be the strongest procedural argument against the validity of the
contested decision. The original Commission draft concerned not just Italy and
Greece, but also Hungary, which in the final version of the contested decision refused
to be included in the group of external border States. As argued by Steve, this
is a change of an essential element, which probably should have been subjected
to a repeated consultation by the European Parliament. Possibly, the emergency
nature of the contested decision could serve as an argument against an
obligation to re-consult, which is, admittedly, a rather weak argument. However,
as Steve has already argued, even if this argument were to succeed, it would
only lead to a procedural redress (meaning that the outcome would be the same
even if the European Parliament were to be re-consulted) while the contested
decision would probably remain in force in the meantime. It therefore seems
that the fourth plea will not suffice either to have the contested decision
annulled.

5. The ‘provisional’ nature of
the contested decision

“Fifth plea in law, alleging
breach of Article 78(3) TFEU by not fulfilling the conditions for its
applicability: In the alternative to the second plea in law, the Slovak
Republic argues that there was a breach of Article 78(3) TFEU because the
conditions for its applicability, which concern the provisional character of
the measures adopted, as well as the emergency situation caused by a sudden
inflow of nationals of third countries, were not fulfilled.”

The fifth plea can be seen from
two points of view again: on the one hand, “the
provisional character of the measures” can be assessed from a formal
viewpoint, looking at the time period for which the measure remains applicable.
On the other hand, the plea invites the Court to assess whether the EU finds
itself in an “emergency situation”, facing a “sudden inflow” of migrants, which
opens up a more substantive analysis of the contested measure.

As for the more formal part of
the argument, the provisional character of the measures could be derived from
the fact that the contested decision is limited in time - it only applies until
26 September 2017. Is a provision that remains applicable for two years
“provisional” enough? The pre-Lisbon version of this provision was Article
64(2) TEC, which limited the duration of such provisional measures to six
months. Compared to this past requirement, two years seem to be quite long. On
the other hand, the current wording of the Treaties imposes no time limit
whatsoever, so two years cannot be seen as a priori illegal. (Yet, this
will be very similar to the data retention case: if 6 months are fine and 2
years are too much, how do we feel about one year? The criteria for assessment
are not clear.) Still, the contested decision’s provisional character could also
be derived from the fact that it only applies to those asylum-seekers who are
already present on the European Union territory or who are likely to come in
the very near future, while a long-term, sustainable solution is being sought
by a legislative proposal, which is currently in the legislative process
and which will presumably take quite some time.

As for the more substantive
analysis, it is rather difficult to predict what criteria will be chosen by the
Court to assess whether the EU really finds itself in an emergency situation.
The current migrant crisis is undoubtedly one of the most serious crises that the
EU has faced in the past couple of decades, but it remains to be seen how the
Court tackles the interpretation of the notions in Article 78(3) TFEU.

6. Principle of proportionality

“Sixth plea in law, alleging
breach of the principle of proportionality: The contested decision is
manifestly incompatible with the principle of proportionality, as it is
manifestly neither suitable nor necessary to achieve the desired end.”

The principle of proportionality
can certainly serve as a very strong argument – it can open the door for a
thorough assessment of the very core of any measure by the Court of Justice.
Obviously, this assessment is much more likely to be political than legal, with
the Court enjoying very wide discretion in balancing the values at stake. It is
a huge pity that the Slovak government has not worked out this sixth plea in
more detail, since any chance of success of this action is potentially hidden
in this last argument. The action could have put forward an argument that the
contested measure is not suitable to reach the desired aim (i.e. to relieve the
burden borne by the external border states and to show “solidarity and fair sharing of responsibility between the Member
States,” as outlined in the decision’s preamble), since relocating people
is too difficult and their further movement is too unpredictable. Furthermore,
under the heading of necessity, it could have been argued that a less
restrictive measure could have been adopted in order to solve the problem, such
as denying entry to migrants (although that could violate the basic principles
of EU law, particularly EU asylum law), triggering the regime of the Temporary
Protection Directive, or other forms of help (e.g.
financial, material or personal help) to the affected states. Last but not
least, the proportionality argument could have been coupled with other
quasi-political arguments, such as a claim under the national identity clause
in Article 4(2) TEU.

It can be concluded that the
Slovak government has missed a great chance to actually make a point under the
sixth plea, since a mere claim of manifest incompatibility with the principle
of proportionality does not give the Court anything to build on. That being
said, if the Court wants to annul the measure, it can always use this plea to
build a strong argumentation under the principle of proportionality.

Conclusion

Based on the analysis above, it
seems to me that the first three pleas have almost no chance of success (unless
the Court decides to reinvent a new understanding of “legislative acts”), the
fourth and the fifth pleas raise interesting issues that could lead to minor
interferences, such as the need to re-consult the Parliament, a limitation of
the contested decision’s application to a shorter period of time, or a very
narrow interpretation of the concepts of “emergency situation” or “sudden
influx of migrants”. The sixth plea, however, opens Pandora’s box and invites
the Court to exercise broad discretion in its assessment of the current
solution to the migration crisis. While proportionality leaves most scope for
the creativity of the Court, it is hard to see it replacing its own judgment
for the judgment of the Member States, especially in a situation where good,
plausible alternatives are quite hard to find.

Wednesday, 23 December 2015

The Court of Justice has now delivered
its judgment in Case
C-333/14 in relation to the lawfulness of the Scottish measure to introduce
minimum alcohol pricing, or MUP for short. Both the Scottish Government and the
Scotch Whisky Association, which brought the legal challenge, have “welcomed the ruling,” although I think that the SWA are probably a
little happier than the Scottish Government as the case returns to the Inner
House of the Court of Session, which had referred it to the CJEU. I’ve
previously written about the AG’s
Opinion and the Court has adopted a very similar approach, but in many ways
the judgment leaves as many questions as it answers. It does appear to give
quite a strong steer to the Court of Session that the CJEU would prefer the
adoption of the “less restrictive” increase in general excise duties instead of
the MUP, but it leaves the final decision on the proportionality of MUP to the
Scottish court.

Is MUP caught by Art 34 TFEU?

Both parties to the dispute had
accepted that MUP pricing was caught by Art 34 TFEU (the ban on measures with
an equivalent effect to quantitative restrictions on imports), but there was
little clarity as to how such a measure breached the prohibition. That at least
has been clarified today. The Court followed the AG’s elegant solution of
evading the complications of categorising a MUP as a “selling arrangement” and
dealing with the matter under the Gourmet International style
analysis, but rather preferring to use the Trailers “market access” test. A
minimum pricing measure restricts access to the UK market as it prevents lower
cost products from other Member States from exploiting that cost advantage in
lower retail prices [32]. As the removal of the benefits of the cost advantage
triggers the market access test there is no need to discuss whether there is
any discrimination inherent within the scheme. This is another example of the
Court preferring the flexibility of the new test to the more traditional Cassis and Keck line of decisions.

The Tricky Balancing Act in Proportionality

The majority of the ruling deals
with the much more difficult question of the potential justification of the
measure on health grounds and whether the restriction is proportionate. At first
instance the Outer House of the Court of Session accepted that the measure
was proportionate as it targeted ‘harmful and hazardous’ drinkers who tended to
consume low price high alcohol products which were most effected by MUP, but in
the CJEU ruling there is a different view taken as to the purpose of the
measure. On the evidence presented to it the CJEU takes the view that MUP has a
“twofold objective” [34], both targeting these “harmful and hazardous”
drinkers, while also reducing general alcohol consumption in the wider
population “albeit only secondarily”. It is this “ambiguity”, as the AG put it,
which I think is at the heart of the problem in the Ruling. If one cannot clearly
define what a measure is designed to achieve it is incredibly hard to come to a
firm conclusion as to whether it is proportionate. The Court did accept, at [38],
that the measure was a real attempt by the Scottish Government to address health
problems within Scotland, but set out that it cannot go beyond what is
necessary in order to protect health. The choice before the CJEU was between
the Scottish Government’s preference for MUP, and the argument that the same
health benefit could be obtained through an increase in the general excise
duties applied to all alcohol products, as preferred by the SWA and the
European Commission. The Court argued that increased taxation could be an
effective heath protection measure, as it is in relation to tobacco, and that
an increase in taxation:

“is
liable to be less restrictive of trade in those products within the European
Union than a measure imposing an MPU. The reason is … that the latter
measure, unlike increased taxation of those products, significantly restricts
the freedom of economic operators to determine their retail selling prices and,
consequently, constitutes a serious obstacle to access to the United Kingdom
market of alcoholic drinks lawfully marketed in Member States other than the
United Kingdom and to the operation of fair competition in that market.”

The contention that an increase
in taxation would be less restrictive of trade, in comparison to MUP, is one of
which I have never been convinced. Taxation affects all products, and MUP would
only affect a limited number; on that simple basis I contend that MUP is
arguably less restrictive in terms of the volume of trade impacted by the
measure. Volume of trade affected has been seen as important in other Art 34
cases, see for example the Sunday
Trading litigation of the 80s, but here the Court refers to this issue much
more explicitly than before. It is not concerned with reducing the volume of
trade impacted, but is much more concerned that the measure does not impact
“fair competition” within the market; even if a greater number of products are affected.
The Court refers to an argument made by the Lord Advocate questioning the
relevance of the Court’s previous cases that dealing with minimum pricing in tobacco
markets. The Court rejects that position, at [45], but I am nervous about simply
reading across from those cases. Those cases centred on the Tobacco
Harmonisation Directives, which were explicitly designed to enhance the single market
integration by using price competition as a driver of integration. The direct
protection of retail price competition is not usually seen so explicitly under
Art 34 TFEU. It appears that the Court is now reading the protection of price
competition into the prohibition. There is also, to my mind, another important
distinction between the health problems associated with tobacco consumption and
the health problems associated with alcohol - different problems will require
different solutions.

The final issue in the
proportionality discussion relates to the vexed question of choosing the least
restrictive of the two measures, and the intrinsically connected question of
the balance between restrictiveness of a measure and its effectiveness at
achieving its aim. Here we return to the “ambiguity” of the purpose of MUP. The
Courts states, at [47]:

“the fact
that increased taxation of alcoholic drinks entails a generalised increase in
the prices of those drinks, affecting both drinkers whose consumption of
alcohol is moderate and those whose consumption is hazardous or harmful, does
not appear, in the light of the twofold objective pursued by the national
legislation at issue in the main proceedings … to lead to the conclusion that
such increased taxation is less effective than the measure chosen”.

The Court appears to suggest that
as taxation can achieve both the general and the specific aim it is as
effective. I find that difficult to follow. One of the main reasons that MUP
was adopted was it was targeted, in that it only impacted on cheap and strong
products and would not have a wider impact on moderate drinkers or on-sales,
which would generally be above the MUP floor. The Court is expressing a
preference for the secondary aim of the measure and effectively side-lining its
primary purpose. It describes this generalised impact as “additional benefits”
[48], but I would argue this is not additional in any valuable sense if it removes
the primary benefit, targeting, from the measure. The Court goes on to the
usual statement that the final decision is, of course, for the referring court,
once it has heard all the evidence and argument, but it is pretty clear where
its preference lies. This preference for one aim over another does not sit well
with the settled position, repeated at [35], that the Member State can decide on
the degree of protection it requires.

On the Article 36 TFEU Derogation

The previous discussion was in
relation to the ‘rule of reason’ within the Art 34 TFEU prohibition, but as
health protection is one of the grounds for derogation in Art 36 TFEU it is
also possible to justify MUP on that basis. The Court discusses Art 36
separately and while the questions are similar the Court appears to adopt a
slightly more relaxed tone. It stresses the same proportionality test as above,
and that it is the Member State’s responsibility to prevent the appropriate
evidence, but also that:

“that
burden of proof cannot extend to creating the requirement that, where the
competent national authorities adopt national legislation imposing a measure
such as the MPU, they must prove, positively, that no other conceivable measure
could enable the legitimate objective pursued to be attained under the same
conditions”.

This appears to give some succour
to the Scottish Government that the ball is now in their court, and that they
must present the best evidence they can to convince the Court of Session. The
alcohol policy evidence, including the Nuffield Report published
yesterday, tends to suggest that there is a good case to be made for MUP. In
that sense there is a still a lot for both sides to play for when the Court of
Session comes back to this issue in 2016.

Conclusions

It is unfortunate that the Court
has followed the reasoning of the AG and the weaknesses that it exhibited. We
now have confirmation that price competition receives protection under Article
34 TFEU, and any attempt by Member States to interfere with the free setting of
prices is likely to be scrutinised as a matter of EU law. The most
disappointing aspect of the ruling is the lack of clarity in the Court’s
discussion of proportionality, it has been described as “Delphic” by some commentators.
I have explained some of my concerns, but the most troubling aspect is the
Court’s apparent willingness to suggest that the Scottish Parliament picked the
“wrong” health aim, and use proportionality analysis to “correct” that mistake.
The Inner House of the Court of Session still has a lot of work to do in unpicking
the Court’s Ruling.

Effective human rights protection is fundamental
to any concept of fairness in the criminal justice system. Fairness, however,
is relative: it may require different levels of protection in different circumstances.

Children require special measures of
protection to take account of their particular vulnerability and needs (UN CRC
Committee, General Comment
10,
para 10). International standards confirm state obligations in this regard
(e.g. UN Convention on
the Rights of the Child (CRC), UN Standard
Minimum Rules for the Administration of Juvenile
Justice, the Council of Europe Guidelines of
the Committee of Ministers of the Council of Europe on child-friendly justice.).
The need for extra protection has also been confirmed by the ECtHR which has stated
that the right to a fair trial under Article 6 requires that: “a child charged
with an offence is dealt with in a manner which takes full account of his
age/level of maturity and intellectual and emotional capacities and that steps
are taken to promote his ability to understand and participate in the
proceeding”(T
v. UK, No. 24724/94, 16 December 1999, at [84]).

The Commission states that approximately
1 million children face criminal justice proceedings in the EU each year
(around 12% of the total) (Commission Staff
Working Document 2013). It has gathered data on
child justice and its reports
shows wide variability in practice and procedure between States. The EU has now
agreed the text of a Directive to
establish specific procedural safeguards for child suspects. This is the fifth
in a series of six EU-specific standards, all in the form of Directives, which
have been agreed under a Roadmap for
strengthening the procedural rights in criminal proceedings (on the fourth
measure, on presumption of innocence, see discussion here; on
the sixth proposal, on legal aid, see discussion here). The Directives
attempt to promote consistency in procedural protection within the criminal
justice systems of EU Member States. Measure E of the Roadmap requires special safeguards
to be created for vulnerable suspects. A Recommendation setting
out procedural safeguards for vulnerable persons has already been published. This
post deals with the recently agreed Directive on
child suspects.

The Directive

The Directive is a
lengthy and rather complex document with 39 Recitals and 25 operative Articles.
The text has now been agreed subject to reservations by Romania (in relation
Article 2(3) and Article 9 (1)) and by Poland (in relation to Article 6(8) (b)).
Ireland, the UK and Denmark are not participating in the instrument. Member
States will have three years to transpose the Directive from the date of its
entry into force (Article 23). [Update; the Directive was officially adopted in April 2016].

The Directive’s purpose is “to establish
procedural safeguards to ensure that children who are suspected or accused in
criminal proceedings are able to understand and follow those proceedings, to
enable such children to exercise their right to a fair trial and to prevent
re-offending by children and foster their social integration” (Recital 1). Children
already benefit from all the human rights guarantees available to adults but the
Directive notes that “experience has shown that this in itself does not always
provide a sufficient degree of trust in the criminal justice systems of other
Member States” (Recital 3). The ECHR remains the baseline for any assessment of
the efficacy of new standards. Recital 35 notes that a “higher level of
protection should not constitute an obstacle to the mutual recognition of
judicial decisions that those minimum rules are designed to facilitate. The level
of protection should never fall below the standards provided by the Charter or
by the ECHR, as interpreted in the case law of the Court of Justice of the
European Union and the European Court of Human Rights.”

Legislation which promotes children’s rights
is welcome. However, to be of genuine value, a separate document for child
suspects should add to and build on existing standards in a child specific way.
It must also address the obstacles which prevent current standards working: it
must prioritise the best interests of the child and remove any vagueness and
discretion which may facilitate non-compliance. Fundamentally, it must also be
effectively implemented in practice. This post will consider some of the key
elements of the Directive. It will conclude that the picture is not entirely
rosy.

Scope

Article 3 defines a “child” as “a person
below the age of 18 years”. The relevant
point at which age is assessed is the age at which the individual becomes
subject to proceedings (Recitals 8 and 9) rather than the age at the time of
the offence. In the case of uncertainty, there is a presumption that the person
is a child. Under Article 2(3), the Directive also applies where a child comes
of age during proceedings but only where the application of the Directive, or
some of its provisions, “is appropriate in the light of all the circumstances
of the case, including the maturity and vulnerability of the person concerned”.
Even then. however, Member States may decide that this Directive does not apply
when the person reaches 21. The Directive simply “encourages” Member States to
apply the procedural safeguards where the person is older than 18 and below 21.
The UN Committee on the CRC has stated in General Comment
10
that “every person under the age of 18 years at the time of the alleged
commission of an offence must be treated in accordance with the rules of
juvenile justice”. It is very disappointing that the Directive fails to follow
this approach.

The Directive lays down “minimum rules”
for children in criminal and in European Arrest Warrant (EAW) proceedings
(Article 1). It does not affect national rules determining the age of criminal
responsibility (Article 2(5)). It applies from the time children are suspected
or accused in criminal proceedings until the final determination of the case
including sentencing and appeal (Article 2 (1)). The Directive also applies to children who
are not suspects or accused persons but who, in the course of questioning by
the police or by another law enforcement authority, become so (Article 2(4)).
This mirrors Article 2(3) of the Directive on
the right of access to a lawyer.

Article 17 confirms that the rights set
out in Articles 4, 5, 6, 8, 10, 11, 12, 13, 14, 15 and 18 of the Directive also
apply to EAW proceedings from the time of arrest in the executing Member State (Article
17). It should also be remembered that, although the Directive seeks to give
children rights in EAW proceedings, Article 3(3) of the Framework
Decision on the EAW actually provides a ground for
mandatory non-execution of the EAW where a person, “owing to his age” cannot be
held criminally responsible for the acts on which the arrest warrant is based
under the law of the executing State.

Another concern is that the Directive
restricts its application in respect of minor offences (Recitals 11a-11c).
Article 2(5a) confirms that, in respect of minor offences, where Member States’
law provides for a sanction by to be imposed by “an authority other than a
court having jurisdiction in criminal matters” and the imposition of such a
sanction may be appealed or referred to such a court or where deprivation of
liberty cannot be imposed as a sanction, the Directive only applies to the
proceedings before a court having jurisdiction in criminal matters. A ‘minor’
offence is not defined and there is no penalty threshold. In C-60/12 Baláž, 14 November
2013 confirmed that ‘having jurisdiction in criminal matters’ means that a
court “must apply a procedure which satisfies the essential characteristics of
criminal procedure, without, however, it being necessary for that court to have
jurisdiction in criminal matters alone” (at [36]). This is “an autonomous
concept of Union law” (at [42]).

It is disappointing that the Directive is
only guaranteed to “fully apply” where a child is deprived of liberty irrespective
of the stage of the criminal proceedings. The restrictions on minor offences mirror
those in other Directives (Article 1 (3) of the Directive on
the Right to Interpretation and Translation, Article 2(2) of the Directive of
the Right to Information, and Article 2 (4) of the Directive on
the Right of Access to a Lawyer). But there is no justification for the
imposition of this clause and no explanation of how it sits with current ECHR
obligations. In terms of the exemption for ‘minor offences’, the ECtHR does not
distinguish between different types of offences: the protection afforded by
Article 6 is engaged as soon as a ‘criminal charge’ is brought against an
individual. Engel and Others v The Netherlands No.
5100/71, 8 June 1976 confirms that, when determining whether a ‘criminal
charge’ exists, specific criteria will be considered: (a) the classification of
the offence under the domestic legal system; (b) the nature of the offence; and
(c) the potential nature and severity of the penalty. Even a seemingly minor
offence may have serious consequences for the child. It is disappointing to apply
this unnecessarily restrictive approach to a document designed to protect
vulnerable suspects.

Rights

The Directive sets out a series of
rights.

Right to information:Article
4 creates a duty to inform child suspects “promptly” about their rights in Directive of
the Right to Information and about general aspects of the conduct of the
proceedings. The Letter of Rights required by Directive of
the Right to Information should also set out a child’s rights under this
Directive (Article 4(2)).

Article 4 distinguishes between those
rights in the Directive which children are to be informed about “promptly” and
those they are to be informed about at the at the “earliest appropriate stage
in the proceedings”. There is no justification for such a distinction. Further,
worryingly, under Article 4 (1a), this information can be given orally rather
than in writing which undermines the protection. There is no requirement that
either an appropriate adult or lawyer is present when this information is
handed over or that the information is given in a child-friendly form (the
Directive merely talks of “simple and accessible language”). The Council of Europe Guidelines on
child friendly justice require information and advice to be provided in a
manner adapted to their age and maturity, in a language which they can
understand and which is gender- and culture-sensitive. This is particularly
important when the age of criminal responsibility varies wildly within the EU
(e.g. it is 10 in England and 15 in Denmark).
Handing information to a child is no guarantee they will be able to
understand or use it and a process to verify the child’s comprehension should
have been established.

Right of the child to have the holder of parental responsibility
informed: Article
3 defines the “holder of parental responsibility” (PR) to mean “any person
having parental responsibility over a child”. Parental responsibility means
“all rights and duties relating to the person or the property of a child which
are given to a natural or legal person by judgment, by operation of law or by
an agreement having legal effect. The term includes rights of custody and
rights of access.”

Under Article 5, the state must ensure
that the holder of parental responsibility is provided “as soon as possible” with
the information that the child receives in accordance with Article 4 (see also
Recitals 15 and 15a). However, Article 5(2), provides specific grounds for
using another appropriate adult, albeit one nominated by the child and accepted
as such by the competent authority. The grounds include: if (a) it would be contrary to the best
interests of the child to provide it to the holder of PR or (b) no holder of
parental responsibility can be reached after reasonable efforts have been made
to do so or his or her identity is unknown or (c) because, on the basis of
objective and factual circumstances, providing information to the holder of PR
could substantially jeopardise the criminal proceedings to provide it to the
holder of PR.

Further, if the child has not nominated
another appropriate adult, or if this nominated adult is not acceptable to the
competent authority, “taking into account the best interests of the child”, the
competent authorities may provide the information to another person, including
someone from an authority or responsible for the protection or welfare of
children. As soon as any of these grounds cease to exist, the information
should be provided to the holder of PR. Provisions which too readily allow the
state to appoint the adult supporting the child are of concern.

Right to assistance by a lawyer:The ECtHR has confirmed that, in order for the right to a fair trial to remain “practical and
effective”, access to a lawyer should be provided from the first police
interrogation (Salduz v. Turkey, No.
36391/02, 27 November 2008). Suspects
are particularly vulnerable at the investigation
stage and evidence gathered may determine the outcome of the case. The right of access to legal assistance is
particularly important for vulnerable suspect such as minors (see for example, S.C. v. the United Kingdom, No.
60958/00, 15 June 2004).

Article 6 re-affirms the right of access
to a lawyer. It also confirms that the right is about exercising the “rights of
defence effectively” (Article 1a.). Under Article 6(2), this assistance should occur
“without undue delay once [Member States] are made aware that they are
suspected or accused of having committed a criminal offence” from whatever
point is earliest: (a) before they are questioned by the police or by another
law enforcement or judicial authority; (b) upon the carrying out by investigating
or other competent authorities of an investigative or other evidence-gathering
act in accordance with point (c) of paragraph 3; (c) without undue delay after
deprivation of liberty; (d) where they have been summoned to appear before a
court having jurisdiction in criminal matters, in due time before they appear
before that court.

Under Article 6(3) (see also Recital
16a), assistance “includes” (so is not limited to): the right to meet in
private and communicate with the lawyer representing them. The confidentiality
of communications between the child and their lawyer is protected under Article
6(4) (see also Recitals 17c and 17d); the right to be assisted by a lawyer when
they are questioned, and that “the lawyer can participate effectively during
questioning” (as with other Directives this participation is “shall be in
accordance with procedures under national law); and the right to be assisted by
a lawyer during investigative or evidence-gathering act such as: (i) identity
parades; (ii) confrontations; (iii) reconstructions of the scene of a crime.

However, Recital 16b also sets out the circumstances
in which the right to a lawyer does not arise, e.g. including verifying the
child’s identity, whether they have a weapon or taking fingerprints or
photographs. These acts potentially carry significant consequences and it is
unhelpful to have limited the scope in this way.

Further, despite the importance of this
right, a series of derogations and discretionary provisions potentially
undercut the protection. For example, there is a proportionality clause in Article
6 (5) (see also Recital 17) which permits Member States, provided that this is
in conformity with the right to a fair trial, to derogate from the obligations
set out in Article 6(2) where assistance by a lawyer “is not proportionate in
the light of the circumstances of the case, taking into account the seriousness
of the offence, the complexity of the case and the measures that could be taken in respect of the alleged offence, it
being understood that the best interests of the child shall always be a primary
consideration”. Further, under Article 6(8), “in exceptional circumstances and
only at the pre-trial stage”, Member States may temporarily derogate from the duty
to provide the assistance of a lawyer “to the extent justified in the light of
the particular circumstances of the case” on one of the following “compelling
reasons”: (a) where there is an urgent need to avert serious adverse
consequences for the life, liberty or physical integrity of a person; (b) where
immediate action by the investigating authorities is imperative to prevent
substantial jeopardy to criminal proceedings in relation to a serious offence.
In applying this paragraph “the best interests of the child” must be taken into
account. This can only be decided on “a case-by-case basis” either by a
judicial authority or other competent authority on condition that the decision
can be submitted to judicial review.

Finally, whereas the Directive on the
right to a lawyer permits suspects or accused persons to waive their right, the
original Commission proposal
prohibited waiver in the case of children. It is disappointing this has been
dropped. Ensuring every child gets legal representation would have been an
important step forward in ensuring rights are protected.

Right to an individual assessment:Article 7
requires Member States to assess children individually to ensure that their
specific needs concerning protection, education, training and social
integration are taken into account. The costs are generally to be met by the
state (Article 21). The assessment shall
“take into account the personality and maturity of the child, their economic,
social and family background, as well as any specific vulnerabilities of the
child” (Article 7(2) and Recital 19a). The nature and extent of the assessment
will depend on the circumstances of the case (Article 7 (2a)). The assessment
should “be carried out with close involvement of the child” and be conducted by
“qualified personnel, following, as far as possible, a multidisciplinary
approach and involving, where appropriate, the holder of parental
responsibility or another appropriate adult and/or specialist professional”
(Article 7 (5)). If circumstances change, an assessment may be updated (Article
7(6)).

The individual assessment, which should
take place at the earliest appropriate stage of the proceedings and, before
indictment (Article 7(4a)), will note information which might be of use by the
competent authorities when making decisions about the child. However, the absence of an early individual
assessment will not stop an indictment being presented if this “is in the best
interests of the child” provided that the individual assessment is available at
the beginning of the trial (Article 7(4b) and Recital 19d). Additionally,
derogation from this provision is possible if “warranted by the circumstances
of the case, and provided that this is compatible with the child's best
interests” (Article 7 (7) and Recital 19e). Again, the creation of rule
accompanied by exceptions may compromise consistency.

Right to a medical examination:Children who are
deprived of liberty have the right to a medical examination without undue delay
(Article 8 and Recital 20). One concern here is that the Directive uses the
term ‘undue delay’ rather than requiring the examination to be done promptly
(compare this with that set out in in General Comment
10).
The examination can be required by the competent authorities or by (a) the
child, (b) the holder of PR responsibility or another appropriate adult as
referred to in Article 5; or (c) the child’s lawyer (Article 8(2). The costs
are generally to be met by the state (Article 21).

The examination is to assess the general
mental and physical health of the child. The examination should be as
non-invasive as possible and carried out by a physician or another qualified
professional. It will be recorded in writing (Article 8 (3)) and may lead to
medical assistance or may help determine the capacity of the child to face
questioning, other investigative or evidence gathering acts or any measures
taken or envisaged against the child (Article 8(1a)). It can be repeated where
required (Article 8(4)).

The Directive should have guaranteed a
right of access to medical treatment if directed by a doctor.

The restriction of this protection to
those who are deprived of their liberty is a concern as medical examinations
may be important to any child facing criminal proceedings. Deprivation of
liberty is not defined but presumably is intended to relate solely to those
detained in prison. In the juvenile justice system, children may also be
obliged to reside with foster carers or have their liberty restricted in other
very significant ways. The ECtHR has said that the “difference
between deprivation of and restriction upon liberty is … merely one of degree
or intensity, and not one of nature or substance”Guzzardi v Italy. No.
7367/76, 6 November 1980. This issue is not addressed in the Directive.

Audio-visual recording of questioning: Member
States will have to ensure that questioning of children by police or other law
enforcement authorities is audio-visually recorded but only “when this is
proportionate in the circumstances of the case, taking into account inter alia
whether a lawyer is present or not and whether the child is deprived of liberty
or not, it being understood that the child's best interests shall always be a
primary consideration” (Article 9 (1) and Recital 21a). The proportionality condition needlessly
weakens this protection by introducing an unacceptably wide scope of discretion
and consequently potential variability.

If there is no audio-visually recording,
questioning is to be recorded in another appropriate manner, and including “by
making written minutes, which are duly verified” (Article 9(2)). By whom? The
child? This should have been more clearly set out.

Limitation of deprivation of liberty:Article 10 is a welcome
re-confirmation that any “deprivation of liberty of a child at any stage of the
proceedings shall be for the shortest appropriate period of time” and that it
should be a “last resort”. It also confirms that the “the age and individual
situation of the child, and of the particular circumstances of the case” should
be taken into account and sets out the need for a reasoned decision and
periodic review. However, these really are
the some of the most basic minimum requirements of lawful practice. Article 10
does not define deprivation of liberty, nor does it restate or refer to the
clear requirements attached to any deprivation of liberty established by
Article 5 ECHR and its case law which are also reflected in Article 48 of the
EU Charter not least those concerning the need for prompt determination of the
decision to detain.

Article 11 and Recital 25a confirm that
competent authorities shall have recourse to alternative measures instead of
detention but, again, this requirement is undermined by the requirement that
this need only happen “where possible”.

Specific treatment in the case of deprivation of
liberty:Article
12 details minimum requirements for children who are detained. They must be
held separately from adults “unless it is considered in the child's best
interest not to do so” (in accordance with Article 37(c) of the UN CRC). In
police custody, there is an additional exception as children need not be held
separately if “in exceptional circumstances, it is not possible in practice to
do so, provided that this is compatible with the child's best interests”
(Article 12 (1a) and Recital 26a). Additionally, Member States have a
discretion to hold children separately when they reach the age of 18 years but
they must still take into account the child’s individual circumstances as well
as the best interests of children who are detained with them (Article 12(2)). However,
General Comment
10
confirms that the ‘best interests’ test here should be interpreted narrowly and
that “the child’s best interests” does not mean for the convenience of the
States parties”. This requirement should have been replicated on the face of
the Directive.

When in detention, Article 12(4) and
Recitals 26c and 26d require Member States to take appropriate measures to: (a)
ensure and preserve their health and their physical and mental development; (b)
ensure their right to education and training, including for children with physical,
sensory and learning disabilities; (c) ensure the effective and regular
exercise of their right to family life; (d) ensure access to programmes that
foster their development and their future integration into society; and (e)
ensure respect for their freedom of religion or belief. These measures do not
go far enough and do not match the standards set out in General Comment
10,
paras. 85-89.

Children are also entitled to meet the
holder of PR as soon as possible but only “where such meeting is compatible
with investigative and operational requirements” and only where the provisions
of Article 5 relating to the designation of another appropriate adult have not
been applied (Article 12(5)). It is deeply disappointing that operational
demands may be placed above a child’s right to see his/her parent/carer.

Timely and diligent treatment of cases:Article 13
requires that all appropriate measures should be taken to ensure that criminal proceedings
involving children “are treated as a matter of urgency and with due diligence”.
This is in line with ECtHR case law on the right to a trial within a reasonable
time. Under Article 18a an effective remedy under national law should be
provided in the event of a breach of Directive rights.

The requirement that appropriate
measures should also be taken to ensure that children are “always treated in a
manner which protects their dignity and which is appropriate to their age,
their special needs, their maturity and level of understanding, and bearing in
mind any communication difficulties they may have” (Article 13 (2)) is welcome.

Right to protection of privacy:Article 14
protects the privacy of children during criminal proceedings. Court hearings
involving children should ordinarily be held in the absence of the public, or
courts or judges to decide to do so. This reflects current human rights
standards in Article 6 ECHR (e.g., see T
v. UK, No. 24724/94, 16 December 1999) and Article 47 of
the EU Charter.

Right of the child to be accompanied by the holder of
parental responsibility during the proceedings: Article 15 and
Recitals 29 and 29 confirm the right of the child to be accompanied by the
holder of PR during court hearings. This can be limited on the same conditions
as Article 5(2). Article 15 similarly permits the state to appoint an
appropriate adult where an alternative is not acceptable.

Children also have the right to be
accompanied during other stages of the proceedings but only where the state
considers that: (a) it is in the interest of the child to be accompanied by
that person; and (b) the presence of that person will not prejudice the
criminal proceedings. The state is given total discretion and the Directive
should have been far clearer on a child’s rights in this regard.

Right of children to appear in person at, and
participate in, their trial:Article
16 confirms a child’s right to be present at, and participate effectively in,
their own trial. This includes giving them the opportunity to be heard and to
express their views. If a child is not present at their trial, the Directive
provides the right to a new trial, or another legal remedy, in accordance with
and under the conditions set out in Directive on
the presumption of innocence. The requirements of Article 6 ECHR and Articles
47 and 48 of the EU Charter would require nothing less.

Right to legal aid:Article
18 requires that national law in relation to legal aid guarantees the effective
exercise of the right to be assisted by a lawyer as referred to in Article 6.
The reference to national law does not help promote standards in view of the
widespread inconsistency and variability (leading to the Commission’s Recommendation on
the issue). The interests of justice test indicates that free legal assistance
may be required for vulnerable groups such as minors (Quaranta v.
Switzerland, No. 12744/87, 24 May 1991, para. 35.
This could have been clearly restated.

Other
provisions

Training:Article
19 deals with training for law enforcement authorities, staff of detention
facilities, the judiciary, prosecutors and lawyers. This is a welcome and
potentially practical step and should be supported by further EU wide guidance drawn
from universal standards.

Data recording:Article
20 requires that Member States send data to the Commission five years after the
Directive enters into force (and every three years thereafter) showing how the Directive
has been implemented. The absence of reliable data on children’s rights in
criminal proceedings has previously been noted by the Commission (see the
report here) so
this is a welcome obligation.

Conclusion

Clear standards protecting children’s
rights are welcome but, based on the summary above, I have the following
general concerns:

1.The
failure to mainstream these protections: they are placed in a separate document
which will need to be compared with others. Should, they not run like a thread
through all the standards? Developing safeguards incrementally may invite
inconsistency.

2.While
some of the Directive’s provisions are new and child-specific, others seem to
be little more than a reiteration (and sometimes a partial one) of the minimum
requirements which exists in relation to all defendants.

3.The
Directive does not always reflect international standards of protection.

4.The Directive
is made potentially less progressive by a series of exceptional and
discretionary provisions which may facilitate variable practice.

Additionally, in reality, to make a
difference any new standards must actually be enforced in practice. We must
ask: will these standards work where others have failed?